Citation Nr: 0802745
Decision Date: 01/25/08 Archive Date: 02/04/08
DOCKET NO. 06-03 255 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for a left knee
disorder.
2. Entitlement to service connection for a right knee
disorder, to include as secondary to a left knee disorder.
ATTORNEY FOR THE BOARD
Douglas J. Boorstein, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Navy
from February 1970 to December 1971. The appeal arose from a
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in September 2003.
FINDINGS OF FACT
1. No competent evidence of record shows that a left knee
disorder had its onset during active service or is otherwise
etiologically related to the veteran's active service.
2. No competent evidence of record shows that a right knee
disorder had its onset during active service, was caused or
aggravated by any in-service injury to the veteran's left
knee, or is otherwise etiologically related to the veteran's
active service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a
left knee disorder have not been met. 38 U.S.C.A. §§ 1110,
1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2007).
2. The criteria for entitlement to service connection for a
right knee disorder have not been met. 38 U.S.C.A. §§ 1110,
1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.310 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants. When VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and the representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183
(2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide; and that
(4) VA will request that the claimant provide any evidence in
his possession that pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim: (1) veteran status; (2) existence
of disability; (3) connection between service and the
disability; (4) degree of disability; and (5) effective date
of benefits where a claim is granted. Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
Here, the VCAA duty to notify has not been satisfied. The
June 2003 letter VCAA letter did not provide the information
required by Pelegrini. Specifically, the veteran was not
notified regarding the requirement that he submit any
evidence in his possession in support of his claims.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that any error by VA in providing the
notice required by 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) is presumed prejudicial, and that once an error
is identified as to any of the four notice elements the
burden shifts to VA to demonstrate that the error was not
prejudicial to the appellant. The Federal Circuit stated
that requiring an appellant to demonstrate prejudice as a
result of any notice error is inconsistent with the purposes
of both the VCAA and VA's uniquely pro-claimant benefits
system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or (3) that a benefit could not have been awarded
as a matter of law. Although not specifically discussed by
the court, some other possible circumstances that could
demonstrate that VA error did not prejudice the claimant
include where the claimant has stated that he or she has no
further evidence to submit, or where the record reflects that
VA has obtained all relevant evidence.
In this case, the Board finds that the notice errors did not
affect the essential fairness of the adjudication. The
veteran has indicated, in a VCAA notice response received in
April 2006, that he has no further evidence to submit. The
veteran specifically indicated that VA had received all of
his military and civilian treatment records. The veteran
submitted an additional form, received in June 2007,
indicating that he did not have any additional medical
evidence to submit.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
With regard to the additional requirements set forth by
Dingess, in this case, although the initial notice provided
did not address either the rating criteria or effective date
provisions that are pertinent to the appellant's claims, such
error was harmless given that service connection is being
denied, and hence no rating or effective date will be
assigned with respect to this claimed condition. The Board
additionally notes that notice of the additional elements
required by Dingess was sent to the veteran in March 2006 and
his claims were subsequently readjudicated in a supplemental
statements of the case in April and August 2007.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with
the current appeal, VA has received the veteran's service
medical records, private medical records, and VA treatment
records. There is no indication of other relevant records
that have not been obtained.
Assistance to the veteran shall also include providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision on
the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
The veteran was provided with an examination regarding his
claims in November 2006.
For the foregoing reasons, the Board concludes that all
reasonable efforts were made by VA to obtain evidence
necessary to substantiate the claims. The evidence of record
provides sufficient information to adequately evaluate the
claims, and the Board is not aware of the existence of any
additional relevant evidence which has not been obtained.
Therefore, no further assistance to the veteran with the
development of evidence is required, nor is there notice
delay or deficiency resulting in any prejudice to the
veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d);
see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006)
Service Connection
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110, 1131 (2006); 38 C.F.R. §
3.303(a) (2006). In order to prevail on the issue of service
connection on the merits, there must be (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999).
Arthritis will be presumed to have been incurred in service
if manifested to a compensable degree within one year after
separation from active service. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309.
Additionally, service connection may be granted, on a
secondary basis, for a disability which is proximately due
to, or the result of, an established service-connected
disability. 38 C.F.R. § 3.310 (2007). Similarly, any
increase in severity of a nonservice-connected disease or
injury that is proximately due to or the result of a service-
connected disease or injury, and not due to the natural
progress of the nonservice connected disease, will be
service-connected. Allen v. Brown, 7 Vet. App. 439 (1995).
In the latter instance, the nonservice-connected disease or
injury is said to have been aggravated by the service-
connected disease or injury. 38 C.F.R. § 3.310. In cases of
aggravation of a veteran's nonservice-connected disability by
a service-connected disability, such veteran shall be
compensated for the degree of disability over and above the
degree of disability existing prior to the aggravation. 38
C.F.R. § 3.322 (2006). Additionally, the Board notes that
38 C.F.R. § 3.310, the regulation which governs claims for
secondary service connection, has been amended recently. The
intended effect of this amendment is to conform VA
regulations to the Allen decision, supra. 71 Fed. Reg. 52,744
(Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). Since VA
has been complying with Allen since 1995, the regulatory
amendment effects no new liberalization or restriction in
this appeal.
Generally, medical evidence, rather than lay evidence, is
required to establish medical causation or a medical
diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). However, in certain uncomplicated circumstances, lay
evidence may suffice. Jandreau v. Nicholson, 492 F.3d 1372
(Fed. Cir. 2007) (explaining in footnote 4 that lay evidence
is competent to identify a simple condition such as a broken
leg but not more complex issues such as identifying a form of
cancer).
Service medical records indicate that in February 1971 the
veteran slipped on a ladder and injured his left knee. The
veteran reported that while flexing his knee, his knee was
painful and felt like it was slipping out of place. He was
diagnosed with a medial femoral condyle contusion and mild
medial ligament tenderness. The veteran was prescribed
crutches. X-rays did not detect any abnormality. Shortly
thereafter, on follow-up treatment in early March 1971, the
pain had declined; the veteran was instructed to discontinue
use of the crutches and to avoid strenuous exercise for one
more week. Service medical records are silent regarding any
further treatment for the veteran's left knee injury. On a
separation examination in December 1971, the veteran's lower
extremities were found to be normal.
The next record of treatment, in July 1975, at a VA hospital,
occurred after the veteran incurred a right knee injury by
twisting his knee two months earlier. The veteran was
diagnosed with a torn right medial meniscus and underwent
right medial meniscectomy.
Private medical records indicate that the veteran received
treatment in July 1979. The veteran's right knee had a torn
lateral meniscus as well as other injuries. An arthroscopy,
lateral meniscectomy, and lateral reconstruction was
performed.
In October 1988, the veteran was treated by a private
physician for a torn medial meniscus in his left knee by
arthroscopic partial medial meniscectomy. The veteran denied
any past trouble with his left knee.
The veteran was afforded a VA examination regarding his
claims in November 2006. The examiner reviewed the veteran's
claims file, including the records of treatment for the
veteran's knees in May 1975, July 1979, and October 1988.
The VA examiner stated that, in his opinion, based on the
record, the May 1975 injury was not acute. The examiner
stated that based on the symptoms discussed in the VA medical
record, the veteran's right knee disability was a long-term
disability. The July 1979 injury was, in the VA examiner's
opinion, due to a recent tear and reinjury of the veteran's
right knee. The examiner determined that this surgery was
unrelated to the veteran's left knee. Regarding the October
1988 surgery, this surgery resulted from the veteran twisting
his knee while exiting a vehicle, also an acute injury. This
injury was "not related to [the veteran's] claim for
service-connection of his left or right knee."
The examiner diagnosed the veteran with bilateral
degenerative joint disease of the knees. The examiner also
noted that the veteran had been treated with a right medial
meniscectomy, a right medial collateral ligament
reconstruction, a lateral meniscectomy and anterior cruciate
ligament reconstruction on the right knee, and a medial
meniscectomy on the left knee. The examiner determined that
the veteran's left knee condition was not the result of or
caused by the veteran's injury in service. The examiner
determined that the symptoms regarding the veteran's 1988
left knee surgery were recent. The examiner also determined
that the veteran's right knee condition also was not the
result of or aggravated by his left knee condition. The
examiner determined that it was "an acute injury of it's
(sic) own making and was not related to any injury sustained
in service on his left knee."
The Board does not doubt that the veteran sincerely believes
his current knee disabilities had their inception in service.
However, there is no indication that he has the requisite
knowledge of medical principles that would permit him to
render an opinion regarding matters involving medical
diagnosis or medical etiology. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
Regarding the veteran's left knee, although he was treated
for a contusion and tenderness following an injury in service
in 1971, there is no further evidence of complaints or
treatment for a left knee disability until October 1988,
almost 17 years after discharge from service. The Board has
considered the veteran's assertion that his left knee never
was the same after entry into service. However, in rendering
a determination on the claim, the lack of evidence of
treatment may bear on the credibility of the veteran's
assertion of continuity. Savage v. Gober, 10 Vet. App. 488,
496 (1997). This absence of treatment is evidence that there
has not been a continuity of symptomatology, and it weighs
heavily against the claim. See Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000). Moreover, the VA examiner has
provided an opinion that the veteran's current left knee
disorder is not the result of or related to the inservice
injury.
Regarding the veteran's right knee, service medical records
are devoid of any indication of right knee injury or
disorder, and the veteran did not have any treatment of that
knee until May 1975, over four years after service. The
veteran primarily contends that his right knee disability is
a result of the left knee disability. Since service
connection has been denied for his left knee disability, it
follows that service connection cannot be granted for the
right knee disability as a result of the left knee
disability.
As there is no credible evidence that arthritis in either
knee manifested itself within one year of the veteran's
separation from active service, the provisions of 38 C.F.R.
§§ 307 and 309 are not for application.
The Board has also considered two web page printouts which
were submitted by the veteran. One is from the Arthritis
foundation, the other is from the Centers for Disease
Control. Both web page printouts provide general statistical
information regarding arthritis. The Board observes that the
Court has held that a medical article or treatise "can
provide important support when combined with an opinion of a
medical professional" if the medical article or treatise
evidence discusses generic relationships with a degree of
certainty such that, under the facts of a specific case,
there is at least "plausible causality" based upon
objective facts rather than on an unsubstantiated lay medical
opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see
also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West,
11 Vet. App. 509 (1998). In the present case, the articles
submitted by the veteran are not accompanied by the opinion
of any medical expert linking the veteran's arthritis to
service. These while providing general statistics on
arthritis, they do not provide information specific to the
veteran's claims. Therefore, this evidence does not assist
in substantiating the veteran's claims.
For the reasons provided above, the preponderance of the
evidence is against the claims, and there is no doubt to be
resolved. Therefore, the claims are denied. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for a left knee disorder is
denied.
Entitlement to service connection for a right knee disorder,
to include as secondary to a left knee disorder, is denied.
____________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs